*1 283 exclusion clause parties is that without intended motorcycles machinery and all forms motor-driven farm comprehensive included within the classification of “motor- driven cars trucks.” Had defendant desired to exclude [or] any other motorcycles motor-driven vehicle than and farm ma chinery it expressly. should have done Koser v. American Reading, Cas. Co. of 162 Super. 63, (2d) 301; Pa. 56 A. Hoover Co., v. 1093, National Cas. 236 App. (2d) 363; Mo. 162 W. S. Snader v. London & Lancashire Ind. America, Co. Pa. 835; A. (2d) Conn., Aetna Life Ins. of Hartford, Co. v. Bidwell, (2d) Tenn. 241 S. W. 595. is affirmed.
MR. ADAIR, CHIEF JUSTICE and ASSOCIATE JUS- BOTTOMLY, TICES FREEBOURN ANDERSON, concur. STATE, Appellant. TONER, Respondent, No. 9305.
Submitted October 1953. Decided November 1953. 264 Pac. *2 Goldman, Joseph appellant. M. Missoula for Atty. Leaphart, W. Asst. Olsen, Atty. Gen., H. Arnold Charles Missoula, respondent. Gen., County Atty., Forsythe, John orally. Leaphart argued Mr. and Mr. Goldman MR. ANDERSON: JUSTICE charged Toner, defendant, age William was nature. He was tried and
having against a committed crime jury. Upon the guilty by a recommendations found given penalty, he was sentenced to be a severe that defendant and from an penitentiary. is from this years in the appeals. motion for a new trial defendant denying a order 253, 84 Keckonen, 107 Mont. in the case of State This court naturally 341, 346, against “Crimes nature said: subject truly a loath- and the person, a normal revolting to rence of some one. the offense to In such cases, jurors are sometimes moved convict slight evidence. [*] by abhor- * * this assiduously enough put tribunal on alone fact guard against prejudice. yielding to dictates of such intense challenges proceeding made to the are confined below generally attorney alleged errors committed judge presiding. is, district Our concern did defendant impartial fair and to the rules according prescribed by Difficulty the laws of state. encountered this was by defendant’s getting exceptions counsel in settled the bill of by the judge necessary district appoint and this court found it a referee to dispute. findings settle that We have before us of the referee findings adopted by and those court. have been
The defendant contends that error was committed by the county attorney district because of the following proceedings Forsythe set forth in the record: “Mr. county attorney] made a [the statement to the to the effect that, while there involving was of other the de- acts fendant Hildebrandt, February and the witness date 13th charged because that was the which date on there was corroboration witness, another to which statement Mr. Gold- *3 objected: man
“Mr. object Goldman: At this time we last remark to that counsel, for nothing the reason that there in the evidence to substantiate that remark of counsel. argument.
“The Court. Go ahead with the Forsythe: “Mr. This is the on which one act we have cor- roboration. objection
“Mr. Goldman: The is made the comment of upon counsel that it is evidence which does not exist in the case. “The Court. Go ahead. Forsythe, continuing
“Mr. argument, remark, his made the effect, subpoenaed that witnesses, the State had 14 of boys, whom were had called four. Forsythe: Why They
“Mr. we rest? didn’t call the were character witnesses. objects
“Mr. Goldman: Counsel for the defendant at this upon time to the counsel remarks of because the comment is evi- dence which is not in the case. Forsythe. ahead, Mr.
“The Court. Go , willing ready, Forsythe: these witnesses was “Mr. Each one of and able— objected to that I twice (Interrupting)
same remark.
“The ahead. Court. Go Forsythe: I
“Mr. these witnesses were will that boys, had been in his home times. who object “Mr. I for reason that com- Goldman: to this ease. matters that do not exist ments objections. “The I these Court: take our record shows objects objects to. stating without what Counsel he by counsel “Mr. that the remarks made Goldman: stated were not borne out in the case. make remarks, You state the and then
“The Court: for the you that, nothing your objections. If don’t do there is to rule on. Court stating objection, further
“Mr. Then make the Goldman: object. to which I the remarks you object to?
“The Court: What remarks do that these remarks wherein he stated “Mr. Goldman: The in. We witnesses, bring them couldn’t were character all, isn’t in at and wasn’t object the reason it the case for brought in the State. to rule something Now there for the Court
“The Court: Attorney County your objection that remark on— you you state what objection is sustained. Unless made. nothing re- to rule on. The to, Court object there is County every down statement porter putting statements, he will you refer to certain Attorney makes. When you object- you last what were time stated put them down. *4 objection your sustained. to, ing please, we wish now to make' If the Court the counsel for the remarks, reference objection an to counsel, when tactics defendant’s pointing out the State objections counsel. already of defendant’s sustained has Court ‘‘The Court: That Go is sustained. ahead.
“Mr. objection Goldman: We an make to the statement of counsel to the effect that he- sons of his has two own that bring up hate to man around.
“The Court: argument.” Overruled. It seems to be mere It is prejudiced jury. contended the above facts In Searle, case of State Mont.
995, 997, this court held it error where the state called why witnesses and they gone asked them had to the defendant’s place of business, after the court had ruled that such evidence was opinion inadmissible. It is our the comments of the county attorney in the instant case regarding the that 14 fact other boys had home many defendant’s times would obviously upon have the same effect as the placing did boys of the on the stand asking incompetent witness them an question, which was done in the Searle case. court went on to in the “True, they Searle case: boys] were not permitted testify facts,
[the to those but the reasonable inference to be drawn was the de- fendant had committed like boys acts the several involved. In the instant case the possible reason for the at- torney’s boys being comments on 14 other character witnesses unjustified would be an to have inference jury. drawn In the ease, supra, Searle this court held that the defendant deprived right to cross-examine because the ruling of the district and therefore defendant did not have a fair trial and a new was ordered. The error present committed in Searle case is here and the motion for a new trial granted. argument A statement counsel in of facts not in evidence or a generally regarded misstatement of the as re- versible is true cases, error. This both civil and criminal ’ ’ especially if the statement of not in evidence is facts wilful. Error, Jur., Appeal 1073, p. Am. & sec. accused, guilty point
An no matter how of fact he be, orderly
is entitled be tried in an manner. *5 spelled reading It which is appears from a mere of the evidence ample information to what out the had as above objected. He heard the remarks made statement counsel attorney instantly objected the most county which to and were repeating the counsel that could have been done defense impi’oper impress remarks still further with to statements. of a of
It times that the concern court has said guilt or the innocence of last resort is not with the jury. appellate for that is court accused the concern is a fair trial without to determine whether the defendant had being prejudiced by violation the rules which have improper and every person from promulgated safeguard to prosecution. malicious Berger States, S. 55 S. Ct.
In the case of v. United U. prosecuting “The 79 L. said: Ed. court attorney’s undignified and intem- argument to the containing calcu- perate, improper insinuations and assertions * ** jury. lated to mislead the Attorney representative is an “The United States sovereignty whose ordinary party controversy, to a but of a obligation impartially compelling its obligation govern as as to is all; therefore, in govern at and whose interest a criminal to justice case, shall not that it shall win a but prosecution is very peculiar he is a different sense be done. As such guilt law, aim of which is that the servant of the twofold may prosecute He escape or suffer. shall not innocence But, vigor indeed, he should do while he so. earnestness — strike ones. blows, liberty is not at to foul strike hard duty improper methods calculated refrain as much his from every legitimate use produce wrongful conviction as is to just bring one.” We endorse the above means about admonition. strong the case in chief was a argued
It is the state that only against the defendant and that a reversal one probability of the case accentuates follow when weakness may be argument Although an prejudice to the accused. such jury not cases, instant compelling in the case some a severe also recommended guilty defendant found the the cause prejudice to penalty. Under such circumstances justified are not that we highly probable accused its assuming nonexistence. was com- prejudicial error complains
The defendant of defend- attorney in cross examination mitted *6 Triplett. questions propounded ant’s witness Lawrence are ruling Triplett’s Mr. answers Triplett, Mr. court’s as follows: ‘‘ Forsythe: by Mr. Cross-Examination Yes,
“Q. morning? A. Triplett, you here this Mr. testified sir.
“Q. Yes, sir. you county jail? in A. You stated “Q. driving. you there ? A. Drunk "What are for “Q. felony? A. I was. you Have ever been convicted of “ Q. you that? penitentiary serve time in for Did the state Yes, sir. object questions on those any “Mr. Goldman: further lines. £ ‘ question whether he served time follows The Court: of question. the first Overruled.
“Q. you A. I did. penitentiary? Did serve time the state “Q. many you have How times arrested? object ground it not
“Mr. Goldman: We that on proper impeachment. you you many
“Q. know times have been arrested? Do how Object for same to that reason. “The Court: Overruled. you
“Q. have you many know times arrested? Do how A. No. say
“Q. many you can’t remember? A. I wouldn’t It’s so that.
“Q. you you times been in know how Do times. County A. About four Missoula Jail?
"Q. How many jail times in Hamilton?
"Mr. object Goldman: ¥e ground to that on proper impeachment. ‘ ‘ The Court: place It seems to have to residence. do with the Overruled.
"Q. you Would question? you answer the If can’t remember so. A. can’t remember. I have been in a time two. there or ‘1Q. you The fact is jail many you have been in times can’t remember how often? Object "Mr. Goldman: to that for the same reasons.
‘ ‘ The Court: Overruled. "Q. right? Isn’t that A. I keep diary it. no “Q. you is so jail you any normal for to be in don’t take special recognition of it? Isn’t that true? object
"Mr. Goldman: We County to the remarks Attorney. The Court: Overruled.
E. 93-1901-11,provides C. M. see. "A as follows: witness impeached party be against called, by whom he was contradictory general reputation evidence or evidence his truth, honesty, integrity or is bad, but not particular wrongful acts, except it may shown *7 witness, examination of the judgment, or record of the felony. he has been convicted of county attorney error committed compounded and. rulings by the appear obvious, of the court below so in view above, unnecessary. the statute that comment thereon seems every in- The accused criminal case is entitled as matter right impartial to a fair and trial. cannot a de said that impartial fendant has had a fair and prosecutor where the continually or asks the defendant his witnesses questions.” State, incompetent Potter v. 91 186, Okl. Cr. 217 847, (2d) 844, also, Coloff, 20 L. R. 2d 1416. See Pac. State v. (2d) 31, 231 343. 125 Mont. Pac.
Defendant contends that permit was error to the prosecuting testify witness Hildebrandt that the defendant had committed
291 125 Mont. Sauter, citing upon him, State v. other similar acts 239 Pac. Searle, 125 Mont. (2d) 731; v. Pac. State 495. (2d) (2d) 995; Hale, Mont. Pac. and State v. cited clearly distinguishable from the eases
The case at bar is find error instant do not and under the facts case we other testimony prosecuting witness of admitting him. similar been committed acts claimed to have 1170. Law, 691, page S., C. J. Criminal see. they assigned reveals that
An examination the other errors stated the For the reasons herein are without merit. grant is reversed with directions to the district court trial.
defendant a new ADAIR, JUS- MR. CHIEF JUSTICE and ASSOCIATE FREEBOURN, BOTTOMLY and concur. TICES MR. JUSTICE ANGSTMAN: opinion doing am foregoing concur in the in State v. Coloff agreeing what was held
to be understood as cited and relied on therein. CORP.,
FLATHEAD LUMBER Appellants, et al., Respondents. ux., EVERETT et 9208. No. March 1953. Decided June 1953. Submitted Dissenting Opinion 18, 1953. Piled November Supplemental Opinion 20, 1953. Piled November